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ISCR Case 06-12032.a1 — CASE

ISCR Case 06-12032.a1denied

Case Headnote

ISCR Case No. 06-12032.a1

Oct 30, 2007· Hon. Jeffrey D. Billett· appeal

Summary

A security clearance applicant, representing himself, was denied a clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from the applicant's extensive history of illegal drug use, which included instances of drug use while he already possessed a security clearance.

The judge determined that the applicant's claims of rehabilitation and his stated intentions for future conduct were insufficient to mitigate the security concerns raised by his past actions. Despite the applicant's arguments, the evidence presented did not adequately address the seriousness and duration of his drug involvement.

Consequently, the judge issued an unfavorable decision, leading to the denial of the applicant's security clearance.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct

Key Rule Quoted

“The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case.”
— ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003)

Procedural Posture

SOR issuedJun 20, 2006
Answer filed—Applicant requested decision on written record.
Hearing heldMay 31, 2007Decision made by Administrative Judge.
Decision dateOct 30, 2007Appeal affirmed by the Board.

Cite For

Evaluation of Lengthy Drug Use History Under Guideline H
Insufficiency of Rehabilitation Claims Against Past Conduct
Burden of Proof on Applicant to Establish Mitigation After Government Raises Security Concerns.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an unfavorable decision by an Administrative Judge denying the Applicant a security clearance based on security concerns under Guidelines H and E. The Applicant argued that the Judge's decision was arbitrary and that mitigating factors were not properly considered. The Board affirmed the Judge's decision, finding it sustainable based on the evidence presented.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoan Caton Anthony — denied the clearance (split findings)

Decided onthe written record

Guidelines belowGuideline HGuideline E

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was sustainable based on the record, and the arguments presented by the Applicant did not demonstrate that the decision was arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Jeffrey D. Billett
Jean E. Smallin
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline H; Guideline E DIGEST: The Board does not review a case de novo. Given the record before the Judge, her unfavorable decision is sustainable. Adverse decision affirmed. CASENO: 06-12032.a1 DATE: 10/30/2007 DATE: October 30, 2007 In Re: ------------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 06-12032

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On June 20, 2006, DOHA issued a statement of reasons advising Applicant of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that his case be decided on the written record. On May 31, 2007, after considering the record, Administrative Judge Joan Caton Anthony denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. The Judge found in favor of Applicant with respect to SOR paragraph 2.a. That favorable finding is not at issue on appeal. Applicant elected to have his case decided on the written record. Therefore, the Judge did not have the opportunity to evaluate the credibility of Applicant’s statements in the context of a hearing. Applicant was granted a security clearance in 2001. Applicant raised the following issue on appeal: whether the Judge’s adverse security clearance decision under Guidelines H and E is arbitrary, capricious, or contrary to law. Applicant argues that the Judge should have concluded that the security concerns raised under Guidelines H and E had been mitigated, as a matter of law, because Applicant’s drug use occurred in the past, Applicant has demonstrated that he would not use drugs in the future, and Applicant provided clear evidence of rehabilitation. In support of this argument, Applicant points to the favorable evidence in the record, including his statement that he did not intend to use drugs in the future, his outstanding work record, and the fact that he has tested negative for illegal substances on recent drug tests. He also contends that his single use of marijuana in 2004, while holding a security clearance, was an isolated incident—distinct from his approximately ten uses in college from 1996 to 2000. Given the totality of the record evidence, Applicant’s arguments do not demonstrate that the Judge’s decision is arbitrary, capricious, or contrary to law. “[T]here is a strong presumption against granting a security clearance.” Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 Cir. 1990), cert. denied, 499 U.S. 905 (1991). Once the government th presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. “The application of disqualifying and mitigating conditions does not turn simply on a finding that one or more of them apply to the particular facts of a case. Rather, their application requires the exercise of sound discretion in light of the record evidence as a whole.” See ISCR Case No. 01-14740 at 7 (App. Bd. Jan. 15, 2003). “Thus, the presence of some mitigating evidence does not alone compel the Judge to make a favorable security clearance decision.” See ISCR Case No. 05-02833 (App. Bd. Mar.19, 2007). “As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. An applicant’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law.” See ISCR Case No. 05-03143 at 3 (App. Bd. Dec. 20, 2006). In this case, the Judge made sustainable findings as to a lengthy history of marijuana use by an Applicant who was familiar with the security clearance process. That history included illegal marijuana use from approximately 1996 to at least August 2004. It also included the illegal marijuana use while holding a security clearance granted by the Department of Defense. A review of the decision indicates that the Judge weighed the mitigating evidence offered by Applicant against the record evidence relating to the length, seriousness and recency of the disqualifying conduct, and considered the possible application of relevant mitigating conditions and whole-person factors. The Judge found in favor of the Applicant with respect to one of the factual allegations. However, the Judge reasonably explained why the evidence which the Applicant had presented in mitigation was insufficient to overcome all the government’s security concerns. The Board does not review a case de novo. Given the record that was before her, the Judge’s ultimate unfavorable clearance decision under Guidelines H and E is not arbitrary, capricious or contrary to law. See, e.g., ISCR Case No. 04-12548 at 2-3 (App. Bd. Sep. 18, 2006).

ORDER

The decision of the Judge denying Applicant a clearance is AFFIRMED. Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board